DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C.No. 152 of 11-04-2013

Decided on 13-06-2013

Chetak Sports Complex (South), through its Officer Incharge c/o 56 APO.

........Complainant

Versus

M/s Khalsa Gymnastic Works, 603, Phool Bhag Colony, Near Victoria Park Colony, Meerut (U.P.)-250 001, through its partner/proprietor/ owner/ authorized signatory.

.......Opposite party

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President.

Sh.Amarjeet Paul, Member.

Smt.Sukhwinder Kaur, Member.

For the Complainant : Sh. Manish Mokhloga, complainant in person

For the opposite party : Exparte

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that he was in need of 'Synthetic Surface Floodlit (with Chainlinked fencing) Tennis Court' on existing clay tennis court, for the training of its employees and also to keep and maintain their fitness, so on 19.9.2009 he invited tenders for the construction of the said tennis court at Chetak Sports Complex at Bathinda, from the different contractors/dealers. Apart from the other contractors, the opposite party also participated in the bid and after negotiations its bid was finalized and accordingly the complainant allotted the proposed construction work of said tennis court to the opposite party vide supply order dated 10.2.2010 on the terms and conditions mentioned therein and the opposite party was required to complete the work at Bathinda. As per the terms and conditions of the supply order, the opposite party was required to furnish the bank guarantee to the extent of 5% of the total cost of the work and further was required to provide the warranty for 3 years to repair the said tennis court if any defect occurs in it, within 7 days from the date of the complaint. As per the terms & conditions of the supply order, the opposite party has completed the construction work at Bathinda and its entire payment has already been paid, which comes to Rs.12,03,568/- while retaining 5% of the amount, as agreed between the parties. After the completion of the work, the opposite party sent its representative at Bathinda to sign on A.T.P Board on its behalf as per letter dated 16.3.2011. In the month of May 2011 the complainant found that some defects have occurred in the said tennis court. The complainant wrote the letter dated 12.5.2011 to the opposite party regarding the defects occurred in the said tennis court and requested it to repair the same as per the relevant clause of the supply order, within 7 days. The defects occurred in the said Tennis Court are :-

i) The Synthetic coating has been damaged at various places.

ii) A crack has occurred at the junction of the synthetic court and the tiles used for seating arrangements.

3. Grass has started growing up at a number of places.

Apart from above, various telephonic conversations were made between the parties but the opposite party neither gave any satisfactory reply nor removed the defects occurred in the said tennis court. Rather it delayed the matter on one or the other pretext. The complainant has written many letters to the opposite party including the letters dated 31.7.2012 and 5.11.2012, but to no effect. Even the opposite party promised vide letter dated 1.9.2012 that its representative/technical team shall visit the site in November 2012 but none has visited at the site and taken any action. Lastly, the complainant wrote letter dated 8.3.2013 to the opposite party, but nothing has been done by it. Hence the complainant has filed the present complaint seeking directions to the opposite party to repair the said tennis court as per the terms and conditions of the supply/work order; to extend the warranty for a further period of 3 years alongwith cost and compensation.

2. Registered notice of the complaint was sent to the opposite party but none appeared on its behalf despite service of notice, as such exparte proceedings were taken against it.

3. The complainant led exparte evidence Ex. C-1 to Ex. C-20 in support of his version.

4. The arguments advanced by the complainant heard at length. Record alongwith written submissions submitted by the complainant perused.

5. A perusal of file reveals that the complainant invited tenders for construction of synthetic surface floodlit (with chainlinked fencing) tennis court on existing clay tennis court. After opening tenders, the complainant placed supply order vide Ex. C-6 worth Rs. 12,03,568/- for construction of synthetic surface floodlit (with chainlinked fencing) Tennis Court on existing clay tennis court, out of Sag for the Yr 2009-2010 at Chetak Sports Complex, Bathinda, Military Station. Under this supply order, there are following clauses regarding Maintenance Back-up :-

   “15. Warranty – Vendors will provide three year free on site comprehensive warranty for the complete equipments commencing from the date of acceptance and a guarantee to provide spares and consumables on payment for a period of five years. During warranty, the vendor will repair/replaces without any cost any equipments/part/accessory, which becomes defective expected items of a considerable natures. During the warranty provide all warranty benefits received by window from the OEMs, for any equipments pertaining to third parties will be passed on in to the Buyer. The buyer may invoke the bank guaranty in case vendor fails to ensure rectification of defects within two weeks of the defect being intimated, Vendor ensure 95% systems availability during the warranty period. Items of the consumable nature must be specified while tendering.

   16. Conditions during warranty : The system should fulfill the following conditions during the warranty :-

   (a) Any failure in the system or a subsystem there of should be rectified within a maximum of seven days of lodging a complaint.

   (b) In case of any system/sub system being down for more than seven working days user has the option to get it repaired from any suitable agency at the risk and cost will be deducted from bank guarantee due to vendor.

   (c) Any system/part failing at Sub system level three times within a period one year of displaying chronic faulty behaviour or manufacturing defects of quality control problems will be totally replaced by the vendor at the risk and cost within 30 days of being intimated.

   18. Payment Terms – Being a turnkey solution 5% of the complete cost of project shall remain under bank guarantee till the expiry of the warranty.......”

6. The opposite party completed the work and intimated the complainant on 16-03-2011 vide Ex. C-10 and furnished its cash credit bank account for e-payment. An amount of Rs. 10,83,21/- was deposited in the account of the opposite party vide Ex. C-18 and 5% amount i.e. Rs. 60,178/- was kept in the form of FDR being bank guarantee for the period from 25-3-2011 to 25-09-2014. The opposite party vide C-10 provided three years warranty for the project in question.

7. The work in question was completed in the month of March, 2011 and in the month of May, 2011 the complainant observed the following defects and asked the opposite party to remove the same vide Ex. C-11 :-

   (a) The synthetic coating have been damaged at various places

   (b) A crack has occurred at the junction of the synthetic court and the tiles used for seating arrangements

   (c) Grasses have started coming up at the number of places.

   Thereafter the complainant made repeated requests to the opposite party for repair of the tennis synthetic court in question, but no response was received from it. On 1-09-2012 vide Ex. C-13, the opposite party intimated the complainant that they will send their technical team staff in 2^nd -3^rd week of November, to rectify the defects, but none visited the complainant to rectify the defects in the tennis court in question despite of the fact that the complainant thereafter also made repeated requests to the opposite party. The complainant has placed on file photocopies of photographs Ex. C-21 to Ex. C-28 of the defective tennis court. As per documents placed on file, the tennis court is within warranty and according to aforesaid supply order, the opposite party is bound to repair it, but it failed to rectify the defects of tennis court in question despite repeated requests of the complainant and even did not appear before this Forum despite service of notice/complaint. Hence, there is deficiency in service on the part of the opposite party.

8. A perusal of file reveals that tenders were invited from Bathinda; the supply order was placed from Bathinda and the tennis court in question was constructed at Bathinda, hence this Forum has the territorial jurisdiction to entertain and try this complaint.

9. In view of what has been discussed above, this complaint is accepted with Rs.10,000/- as compensation and cost. The opposite party is directed to rectify the defects of the tennis court in question to the entire satisfaction of the complainant and obtain a satisfaction note from the complainant to this effect.

10. The compliance of this order be made within 60 days from the date of receipt of copy of this order failing which the complainant may get it repaired from any suitable agency and cost of repair will be deducted from bank guarantee due to vendor as per aforesaid clause of supply order. In case the cost of repair increases the bank guarantee, that too will be paid by the opposite party.

    A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

    Pronounced in open Forum

    13-06-2013

    (Vikramjit Kaur Soni)

    President

     

     

     

    (Amarjeet Paul) Member

     

     

    (Sukhwinder Kaur)

    Member